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Democracy and Law--Stuntz

With good reason, ours is an age in which the rule of law is a terribly important concept. In the United States, support for law—and support for law’s natural product: order—is near-universal. Not so with respect to support for democracy. Americans oscillate between Administrations (like the previous one) that seek to promote both law and democracy and Administrations (like the current one) that seek to promote stability and order: the key products of the rule of law. We agree about law’s virtues. About democracy, not so much.

This is curious, and deeply wrong. Law has no moral content: its rights and wrongs depend wholly on the content of the relevant legal rules. Democracy does have moral content: it says that, as between thuggish rulers and people in the streets of Tehran, the people in the streets are on the side of the angels. True, democratic governments are sometimes evil—but the concept of democracy places limits on those evil rulers; their rule is subject to a power they cannot control. Law is more a tool for evil rulers than a limit on them. As between democracy and law, I would think Americans of all political stripes could agree that democracy is a better and more consistent ally.
 
Perhaps that will be the lesson of what looks more and more like the Iranian Revolution of 2009. I certainly hope so. The American-style rule of law is deeply problematic; much about our legal system is nightmarishly wrong and unfair. But the twin ideas that elections matter and that governments do not fake election results—those are thoroughly good and right ideas, ones with which all of us, Bushian and Obamaphile alike, ought to agree. Maybe the rise of the Iranian street will produce such agreement. Again, I hope so.
 

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Comments ( 1 )

It's probably a mistake to disagree with a law prof in regards to law, but I think this is almost backwards. To the degree that democracy - formally, rule of the people - has substance, it is in that it carries with it (in our day) constitutional limits. Some (like Habermas) seem to think that the idea of democracy itself carries with it the usual set of liberties and protections we all embrace, but that's always seemed to me rather unpersuasive. (Or, rather, it makes many of those liberties much less secure). We can only say that law is non-substantive to the degree that we buy Hobbesian positivism - but why think that? The two worst regimes in the 20th century - Nazi Germany and Stalin's USSR - were essentially lawless regimes. Why was that? I say it's because law carries with it (however imperfectly in our disordered world) a claim of reason (in the Thomistic sense of things). Democracy, on the other hand, is the aggregated will of the people and seems on that score quite insubstantial. But that's just a quick (and no doubt quite erroneous) cut...